READ THAT BACK: Attorney Advertising, Chuck Norris, and the ABA Gets Lit


Mid-day Friday we got word that some undisclosed number of Supreme Court opinions could be on their way this week! For purposes of comparison, the first opinion-after-argument (that is, opinion that the court would announce, rather than simply release as an attachment to orders) last year wasn’t released until Nov. 29—a full three weeks later. What will it/they be?! Of course no one outside the court yet knows, but the Court Reporter’s money (the Court Reporter doesn’t gamble) is on Dimaya and/or Jennings, the two cases that were held over from the previous term and reargued in the presence of the new ninth justice. Presumably they were 4-4 splits when the court was down to eight justices (if they weren’t, why bother to reargue them? A 5-3 is no different than a 6-3 or 5-4); the writing justices could have penned their opinions after initial argument, gotten Gorsuch’s vote in October, and modified their opinions to suit the result. Presumably this would be a quicker process than writing new opinions from scratch, although modifying opinions on the fly based on changes in the composition of the court can lead to…slip-ups.

While we wait, let’s READ THAT BACK!

Thomas Talks Turkey: Justice Clarence Thomas gave a rare interview to former clerk Laura Ingraham on her Fox News TV show. The famously taciturn justice (the Court Reporter was in the room when he broke his ten-year silence to ask a question in a gun control case, and remembers the murmur of shock as it ricocheted around the courtroom) talked about law, and the constitution, and blah blah yadda yadda, what did he say about Gorsuch? “He is a good man,” and he has no idea what people are talking about when the rumor spread about him having ruffled feathers at the court. So much for the court’s TMZ moment.

What Goes Around: The Court Reporter remembers reading Virginia State Board of Pharmacy for First Amendment class in law school, and specifically the Rehnquist dissent where he laments that the majority’s decision would allow pharmacists to advertise using slogans like “Can't shake the flu? Get a prescription for Tetracycline from your doctor today.” Okay, okay, so the original didn’t have the Wikipedia link, and in any event an antibiotic can’t cure the flu. What so scandalized Rehnquist now seems a bit quaint, compared to the barrage of drug-related ads we’re treated to on commercial TV these days. But now the shoe may be on the other foot: Big Pharma and the Chamber of Commerce are pushing for regulation of attorney drug class action advertising. Maybe I’m being cynical, but I am reminded of the story of an old man who turned 98….

Chuck Norris Facts: Joke-Chuck Norris—the Chuck Norris who likes his meat so rare he only eats unicorns, who played Russian roulette with a fully-loaded gun and won, and makes onions cry when he cuts them—could probably cure cancer with a roundhouse kick and some side-eye. In real life, medical treatment is more complicated, and potentially dangerous; in fact, in a new lawsuit he alleges that a chemical used in MRIs very nearly killed his wife Gena.

ICYMI:

  • Hungry for argument coverage? Ketchup on last week’s main courses!
    • Who coconuts as an “insider” in a bankruptcy?
    • Juice-tices struggle with inmate procedural clams!
    • How long do you have to reheat your leftovers in state court?
  • Some big names in the legal academy take some big swipes at other big names in the legal academy in an NYT op-ed.
  • This MoFo is leaving BigLaw to join BigRecruit.
    • Personal and deeply relevant aside: Keith Wetmore always had the most perfect necktie knots.

And Now…The ABA Smokes Grasz: I wish I could take credit for this headline, but the credit belongs to, as far as the Court Reporter can tell, The National Review, which ran a three-part story on controversial 8th Circuit nominee Steve Grasz: Part 1, Part 2, Part 3. U.S. Law Week had a somewhat more condensed look at his nomination here (subscription required).

The ABA’s rating of Grasz—“unqualified”—is the first time they’ve handed out that rating since 2006, when three of President Bush’s nominees earned the rating. (SCOTUS side-note: Harriet Miers, whose nomination to replace Sandra Day O’Connor on the Supreme Court was withdrawn, was not rated. Samuel Alito, who eventually did replace O’Connor, was, you’ll note, rated “well-qualified.”)

The rating suggested that Grasz was gratuitously rude; that individuals interviewed by the ABA had an unusual fear that they would face reprisals for expressing their opinions; advocated novel legal theories in an attempt to circumvent Supreme Court rulings; was driven by his social agenda; and had ties to a group that advocates “conversion therapy,” the non-scientific belief that sexual orientation can be changed through therapy, which has been dismissed by the American Psychological Association.

Grasz dismissed the rating as political, and Senator Orrin Hatch seemed to agree. The ABA says that its ratings are nonpartisan, and the committee has handed out “qualified” and “well-qualified” ratings to a number of Trump nominees, including Neil Gorsuch and, well, every other circuit court nominee to have been rated so far.

Of course, the ratings are non-binding, and in fact the Trump administration, like the Bush 43 administration, doesn’t even use the ratings as a part of its nomination process. The Obama administration did take the ABA’s view into account as part of the selection process, and consequently, none of its nominees ever earned an “unqualified.”